*Senate introduces bill legalising virtual court
proceedings
By Tobi Soniyi
As the push for Nigeria to adopt virtual court sitting,
especially in the wake of the lockdowns occasioned by COVID-19,
gathers momentum, many judges are not convinced such practice is
legal under the 1999 Constitution, as amended. Investigation by
THISDAY reveals that many judges, particularly at the high court
level and the Court of Appeal, are of the view that there are
constitutional hurdles to cross before Nigeria can adopt a system
of remote hearing of cases. They cite section 36 of the
constitution, which provides that court proceedings, including
delivery of court decisions, shall be held in public.
But the Senate on Tuesday considered a bill to amend the
constitution to make virtual court proceedings constitutional. The
bill, titled, “1999 Constitution of the Federal Republic of Nigeria
(Alteration) Bill, 2020 (SB. 418),” was sponsored by Senator
Michael Opeyemi Bamidele.
Some of the judges who spoke with THISDAY on condition of
anonymity expressed reservations about the adoption of the digital
platforms of hearing cases. They reasoned that cases heard and
determined under such arrangement were most likely to be set aside
by the Supreme Court on the ground that such hearings did not meet
the constitutional thresholds for determining cases.
Moreover, lawyers are feeling frustrated that the lockdowns have
denied them the opportunity to practise their trade. Many cases,
including those involving human rights violations, could not be
filed as a result of the lockdowns.
Although the Chief Justice of Nigeria, Justice Tanko Muhammad,
had directed that cases that were time bound and urgent be heard,
lawyers could not leave their houses because of lockdowns imposed
by states.
To ensure that the justice system was not grounded to a total
halt, some senior lawyers had written to the CJN to consider
adoption of remote court sitting.
In one of such letters, the Justice Reform Project, in a letter
dated April 14, 2020, urged the CJN “to consider issuing immediate
Court Directions and Protocols to ensure the continued
administration of justice in the face of the pandemic.”
The JRP said it took the view that “this situation provides a
unique opportunity for a considerable improvement of the
administration of justice system in Nigeria and recommends that
Your Lordship considers the adoption of remote court hearings to
ensure the continued administration of justice in the face of the
pandemic and an improved dispensation thereafter.”
The group in the letter signed by the Chairman, Governing Board,
Mrs Olufunke Adekoya (SAN), and Convener, Charles Adeyemi
Candide-Johnson (SAN), said, “The judiciary in several countries,
including the United Kingdom, the Republic of Kenya and Uganda have
exploited legal, financial and technological resources to ensure
hearings can be conducted remotely despite the movement
restrictions in place. On 3rd April 2020, a Justice of the Kenyan
Court of Appeal reportedly delivered 57 rulings and judgments using
inexpensive online video conferencing platform, Zoom.”
JRP argued, “Nigerian Judiciary can adopt this available, simple
and inexpensive technology as has been done in other jurisdictions
pending the installation of more permanent court infrastructure. In
essence, we recommend the deployment of technology in two stages,
an immediate temporary deployment using the simple and inexpensive
measures recommended herein and a more permanent technological
upgrade to be set out by a more elaborate process.”
Last Monday, a leading law chamber in Nigeria, Wole Olanipekun &
Co., held a webinar titled, “Legal and infrastructural
considerations for remote court proceedings in Nigeria,” which was
attended virtually by the CJN, Acting President, Court of Appeal,
Justice Monica Dongban-Mensem, and several other jurists and policy
influencers in the justice sector.
Similarly, the Attorney-General of the Federation and Minister
of Justice, Abubakar Malami (SAN) and the National Judicial Council
headed by the CJN have both announced separate plans for Nigerian
courts to resort to virtual proceedings during and after the
COVID-19 pandemic.
Interestingly, Lagos State had on March 4, 2020 adopted the
“Lagos State Judiciary Remote Hearing of Cases (COVID-19 Pandemic
Period) Practice,” which would ensure the hearing and determination
of urgent and time-bound cases through digital platforms like Zoom,
Skype or any other video and audio conferencing platform approved
by the court.
Few cases had been heard in the state using the Practice
Direction. Other states are working behind the scenes to adopt a
similar practice direction.
However, some of the judges who spoke with THISDAY expressed
reservations about the digital approach, citing constitutional
hurdles.
The Hurdles
Section 36 (3) and (4) of the Constitution provide as
follows:
“(3) The proceedings of a court or the proceedings of any tribunal
relating to the matters mentioned in subsection (1) of this section
(including the announcement of the decisions of the court or
tribunal) shall be held in public.
(4) Whenever any person is charged with a criminal offence, he
shall, unless the charge is withdrawn, be entitled to a fair
hearing in public within a reasonable time by a court or
tribunal…”
Citing cases already decided by the Supreme Court, the judges
argued that the requirement for public hearing and determination of
cases in Nigeria is mandatory as the operative word is “shall”,
which means that it is compulsory.
“If you look at the authorities, I’m not sure hearing through
Zoom or Skype will amount to public hearing,” one of the judges
said.
The authorities appear to support the position of the judges. For
instance, the Supreme Court, in the case of Edibo v. the State
(2007) 13 NWLR (Pt. 1051) p. 306, set aside the conviction and
sentence of the appellant and others who were charged with culpable
homicide punishable by death on the ground that it was
unconstitutional for the trial judge to have taken their pleas in
his chambers.
The apex court held that the judge’s chambers were not a public
place.
The question many judges are asking is, will a court hearing held
through Zoom or Skype be considered to have been held in a public
place? The judges who spoke with THISDAY answered in the
negative.
To strengthen their argument, they further cited the tendency of
the apex court to be illiberal and inflexible in interpretation of
the constitution.
Another judge volunteered, “I’m not against adoption of virtual
sitting, but we need to first, hold a conversation on whether
certain provisions of the constitution should not be amended to
accommodate these gadgets. Otherwise, it will amount to a waste of
resources for a case to be decided using these means only for the
Supreme Court to set aside the judgement and order a fresh
trial.”
He made reference to a recent Supreme Court judgement setting
aside the trial, conviction and sentence of a former Abia State
governor, Orji Kalu, on the ground that the trial judge, having
been elevated to the Court of Appeal, lacked the power to continue
with the trial as a judge of the high court.
Based on the judges’ concerns, THISDAY dug further and found
that the concerns were not baseless. The authorities support the
view that virtual hearing of cases may not pass the constitutional
test of public hearing. From the authorities, the Supreme Court had
interpreted public place to mean an open place, which is accessible
to everyone without hindrance of any sort.
Since many Nigerians don’t have access to smartphones and data,
they may not be able to access virtual court proceedings. This is
another reason virtual court may offend the provisions of the
constitution.
When a trial judge sat in his chamber to deliver judgement in
the case of Nigeria-Arab Bank Limited v. Barri Engineering Nig.
Ltd. (1995) 8 NWLR (Pt. 413) 257, the Supreme Court set aside the
judgement, holding that the delivery of the judgement in the
judge’s chamber was an irregularity, which bordered on the legality
of the whole proceedings.
The judges also dismiss the suggestion that this anomaly can be
cured by heads of court through the issuance of practice
directions.
According to them, the powers of a head of court to issue practice
direction is circumscribed by the constitution. A head of court
cannot issue a practice direction that overrides or expands the
constitution.
Where the constitution has covered the field as to the law
governing any conduct, the provision of the constitution is
authoritative statement of the law on the subject. The case of AG
Ogun State v AG Federation (1982) NSCC.1. is authority for this
assertion.
Since the constitution has declared that cases must be heard in
public, no head of court has power to declare otherwise. The
constitution will have to be amended to accommodate other
circumstances.
“Since Section 36 (3) and (4) of the constitution have expressly
stipulated that the proceedings of court (including the
announcement of its decisions) shall be held in public, this
clearly and automatically excludes any other implied forum for
holding or conducting court proceedings, including a virtual
forum,” another judge stated.
In the cases cited above, the Supreme Court rejected the
argument that since no miscarriage of justice was occasioned by not
holding the trial in public, the judgement should be allowed to
stand.
Hope, as Senate Introduces Bill Legalising Virtual Court
Proceedings
Help appears to be on the way to allay the fear of judges as the
Senate on Tuesday considered a bill to amend the constitution to
make virtual court proceedings constitutional. The bill, titled,
“1999 Constitution of the Federal Republic of Nigeria (Alteration)
Bill, 2020 (SB. 418),” was sponsored by Senator Michael Opeyemi
Bamidele.
The bill aims at ensuring the much-needed corresponding
amendment of relevant provisions of the Constitution of the Federal
Republic of Nigeria, 1999, as amended, in giving legal teeth to
virtual court proceedings.
Key provisions of the bill, as contained in the draft copy, include
Section 36 (3), which states, “This section is hereby amended by
the addition of the following:
“Provided that nothing in this subsection shall invalidate
proceedings of a court or the proceedings of a tribunal relating to
matters mentioned in subsection (1) of this section (including the
announcement of the decisions of the court or tribunal) where same
is held by remote hearing or any virtual means now in existence or
yet to be developed.
“Section 36 subsection (4) is hereby amended by addition of
sub-paragraph (c) as follows: (c) nothing in the foregoing
paragraphs shall invalidate proceedings of a court or the
proceedings of a tribunal relating to matters mentioned in
subsection (1) of this section (including the announcement of the
decisions of the court or tribunal) where same is held by remote
hearing or any virtual means now in existence or yet to be
developed.
“Section 36 subsection (12) is hereby amended by addition of the
following subsection (13): In this section, ‘remote hearing’ means
proceedings or hearing of court conducted via Zoom, Skype, WhatsApp
video or any other social media platform or technological
innovation.”
Culled from Thisday Newspaper
*Senate introduces bill legalising virtual court
proceedings
By Tobi Soniyi
As the push for Nigeria to adopt virtual court sitting,
especially in the wake of the lockdowns occasioned by COVID-19,
gathers momentum, many judges are not convinced such practice is
legal under the 1999 Constitution, as amended. Investigation by
THISDAY reveals that many judges, particularly at the high court
level and the Court of Appeal, are of the view that there are
constitutional hurdles to cross before Nigeria can adopt a system
of remote hearing of cases. They cite section 36 of the
constitution, which provides that court proceedings, including
delivery of court decisions, shall be held in public.
But the Senate on Tuesday considered a bill to amend the
constitution to make virtual court proceedings constitutional. The
bill, titled, “1999 Constitution of the Federal Republic of Nigeria
(Alteration) Bill, 2020 (SB. 418),” was sponsored by Senator
Michael Opeyemi Bamidele.
Some of the judges who spoke with THISDAY on condition of
anonymity expressed reservations about the adoption of the digital
platforms of hearing cases. They reasoned that cases heard and
determined under such arrangement were most likely to be set aside
by the Supreme Court on the ground that such hearings did not meet
the constitutional thresholds for determining cases.
Moreover, lawyers are feeling frustrated that the lockdowns have
denied them the opportunity to practise their trade. Many cases,
including those involving human rights violations, could not be
filed as a result of the lockdowns.
Although the Chief Justice of Nigeria, Justice Tanko Muhammad,
had directed that cases that were time bound and urgent be heard,
lawyers could not leave their houses because of lockdowns imposed
by states.
To ensure that the justice system was not grounded to a total
halt, some senior lawyers had written to the CJN to consider
adoption of remote court sitting.
In one of such letters, the Justice Reform Project, in a letter
dated April 14, 2020, urged the CJN “to consider issuing immediate
Court Directions and Protocols to ensure the continued
administration of justice in the face of the pandemic.”
The JRP said it took the view that “this situation provides a
unique opportunity for a considerable improvement of the
administration of justice system in Nigeria and recommends that
Your Lordship considers the adoption of remote court hearings to
ensure the continued administration of justice in the face of the
pandemic and an improved dispensation thereafter.”
The group in the letter signed by the Chairman, Governing Board,
Mrs Olufunke Adekoya (SAN), and Convener, Charles Adeyemi
Candide-Johnson (SAN), said, “The judiciary in several countries,
including the United Kingdom, the Republic of Kenya and Uganda have
exploited legal, financial and technological resources to ensure
hearings can be conducted remotely despite the movement
restrictions in place. On 3rd April 2020, a Justice of the Kenyan
Court of Appeal reportedly delivered 57 rulings and judgments using
inexpensive online video conferencing platform, Zoom.”
JRP argued, “Nigerian Judiciary can adopt this available, simple
and inexpensive technology as has been done in other jurisdictions
pending the installation of more permanent court infrastructure. In
essence, we recommend the deployment of technology in two stages,
an immediate temporary deployment using the simple and inexpensive
measures recommended herein and a more permanent technological
upgrade to be set out by a more elaborate process.”
Last Monday, a leading law chamber in Nigeria, Wole Olanipekun &
Co., held a webinar titled, “Legal and infrastructural
considerations for remote court proceedings in Nigeria,” which was
attended virtually by the CJN, Acting President, Court of Appeal,
Justice Monica Dongban-Mensem, and several other jurists and policy
influencers in the justice sector.
Similarly, the Attorney-General of the Federation and Minister
of Justice, Abubakar Malami (SAN) and the National Judicial Council
headed by the CJN have both announced separate plans for Nigerian
courts to resort to virtual proceedings during and after the
COVID-19 pandemic.
Interestingly, Lagos State had on March 4, 2020 adopted the
“Lagos State Judiciary Remote Hearing of Cases (COVID-19 Pandemic
Period) Practice,” which would ensure the hearing and determination
of urgent and time-bound cases through digital platforms like Zoom,
Skype or any other video and audio conferencing platform approved
by the court.
Few cases had been heard in the state using the Practice
Direction. Other states are working behind the scenes to adopt a
similar practice direction.
However, some of the judges who spoke with THISDAY expressed
reservations about the digital approach, citing constitutional
hurdles.
The Hurdles
Section 36 (3) and (4) of the Constitution provide as
follows:
“(3) The proceedings of a court or the proceedings of any tribunal
relating to the matters mentioned in subsection (1) of this section
(including the announcement of the decisions of the court or
tribunal) shall be held in public.
(4) Whenever any person is charged with a criminal offence, he
shall, unless the charge is withdrawn, be entitled to a fair
hearing in public within a reasonable time by a court or
tribunal…”
Citing cases already decided by the Supreme Court, the judges
argued that the requirement for public hearing and determination of
cases in Nigeria is mandatory as the operative word is “shall”,
which means that it is compulsory.
“If you look at the authorities, I’m not sure hearing through
Zoom or Skype will amount to public hearing,” one of the judges
said.
The authorities appear to support the position of the judges. For
instance, the Supreme Court, in the case of Edibo v. the State
(2007) 13 NWLR (Pt. 1051) p. 306, set aside the conviction and
sentence of the appellant and others who were charged with culpable
homicide punishable by death on the ground that it was
unconstitutional for the trial judge to have taken their pleas in
his chambers.
The apex court held that the judge’s chambers were not a public
place.
The question many judges are asking is, will a court hearing held
through Zoom or Skype be considered to have been held in a public
place? The judges who spoke with THISDAY answered in the
negative.
To strengthen their argument, they further cited the tendency of
the apex court to be illiberal and inflexible in interpretation of
the constitution.
Another judge volunteered, “I’m not against adoption of virtual
sitting, but we need to first, hold a conversation on whether
certain provisions of the constitution should not be amended to
accommodate these gadgets. Otherwise, it will amount to a waste of
resources for a case to be decided using these means only for the
Supreme Court to set aside the judgement and order a fresh
trial.”
He made reference to a recent Supreme Court judgement setting
aside the trial, conviction and sentence of a former Abia State
governor, Orji Kalu, on the ground that the trial judge, having
been elevated to the Court of Appeal, lacked the power to continue
with the trial as a judge of the high court.
Based on the judges’ concerns, THISDAY dug further and found
that the concerns were not baseless. The authorities support the
view that virtual hearing of cases may not pass the constitutional
test of public hearing. From the authorities, the Supreme Court had
interpreted public place to mean an open place, which is accessible
to everyone without hindrance of any sort.
Since many Nigerians don’t have access to smartphones and data,
they may not be able to access virtual court proceedings. This is
another reason virtual court may offend the provisions of the
constitution.
When a trial judge sat in his chamber to deliver judgement in
the case of Nigeria-Arab Bank Limited v. Barri Engineering Nig.
Ltd. (1995) 8 NWLR (Pt. 413) 257, the Supreme Court set aside the
judgement, holding that the delivery of the judgement in the
judge’s chamber was an irregularity, which bordered on the legality
of the whole proceedings.
The judges also dismiss the suggestion that this anomaly can be
cured by heads of court through the issuance of practice
directions.
According to them, the powers of a head of court to issue practice
direction is circumscribed by the constitution. A head of court
cannot issue a practice direction that overrides or expands the
constitution.
Where the constitution has covered the field as to the law
governing any conduct, the provision of the constitution is
authoritative statement of the law on the subject. The case of AG
Ogun State v AG Federation (1982) NSCC.1. is authority for this
assertion.
Since the constitution has declared that cases must be heard in
public, no head of court has power to declare otherwise. The
constitution will have to be amended to accommodate other
circumstances.
“Since Section 36 (3) and (4) of the constitution have expressly
stipulated that the proceedings of court (including the
announcement of its decisions) shall be held in public, this
clearly and automatically excludes any other implied forum for
holding or conducting court proceedings, including a virtual
forum,” another judge stated.
In the cases cited above, the Supreme Court rejected the
argument that since no miscarriage of justice was occasioned by not
holding the trial in public, the judgement should be allowed to
stand.
Hope, as Senate Introduces Bill Legalising Virtual Court
Proceedings
Help appears to be on the way to allay the fear of judges as the
Senate on Tuesday considered a bill to amend the constitution to
make virtual court proceedings constitutional. The bill, titled,
“1999 Constitution of the Federal Republic of Nigeria (Alteration)
Bill, 2020 (SB. 418),” was sponsored by Senator Michael Opeyemi
Bamidele.
The bill aims at ensuring the much-needed corresponding
amendment of relevant provisions of the Constitution of the Federal
Republic of Nigeria, 1999, as amended, in giving legal teeth to
virtual court proceedings.
Key provisions of the bill, as contained in the draft copy, include
Section 36 (3), which states, “This section is hereby amended by
the addition of the following:
“Provided that nothing in this subsection shall invalidate
proceedings of a court or the proceedings of a tribunal relating to
matters mentioned in subsection (1) of this section (including the
announcement of the decisions of the court or tribunal) where same
is held by remote hearing or any virtual means now in existence or
yet to be developed.
“Section 36 subsection (4) is hereby amended by addition of
sub-paragraph (c) as follows: (c) nothing in the foregoing
paragraphs shall invalidate proceedings of a court or the
proceedings of a tribunal relating to matters mentioned in
subsection (1) of this section (including the announcement of the
decisions of the court or tribunal) where same is held by remote
hearing or any virtual means now in existence or yet to be
developed.
“Section 36 subsection (12) is hereby amended by addition of the
following subsection (13): In this section, ‘remote hearing’ means
proceedings or hearing of court conducted via Zoom, Skype, WhatsApp
video or any other social media platform or technological
innovation.”
Culled from Thisday Newspaper